Creating Implementation Legislation Legal Obligation

504 MIMBAR HUKUM Volume 28, Nomor 3, Oktober 2016, Halaman 497-511 which expressly mandates the harmonization of international law that have been ratiied acceded contributed to the dormancy of post- ratiied international agreements and treaty. Perspective of Practice in Indonesia, there are an abundance of dormant inter- national agreements and treaties that had been ratiied, and have not been followed by alignment process in national law. This stacks of dormant international agreements causes uncertainty to which international treaty are applicable and binding in the case where there are 2 or more legal products regulating the same materials. For example, Indonesia ratiied United Nation Convention on the Law of the Sea 1982 which was integrated by Indonesia vis-à-vis Law Number 17 of 1985. However under the UNCLOS Ratiication Data in United Nations, Indonesia was only declared state parties of UNCLOS since 3 March 1986, 23 which at the time the Governmental Regulation Number 4 Year 1960 was still applicable. Both of this legal products are equally binding for Indonesia, however there cannot be duality of law, lest it would create legal uncertainty, and ratiication of international products does not necessarily negates the applicable and older legal regime. Both UNCLOS and Indonesia’s Government Regulation regulate the same things regarding the archipelagic nation. But between these two legal products, there are several differences, one of which is associated with the determination of archipelagic sea lanes passage which was not accommodated in Law No. 4 of of 1960. The above case illustrates that Indonesia have not successfully implemented harmonization of international treaty that had been ratiiedacceded by Indonesia, to this extent, even the database of the International Treaty in the Ministry of Foreign Affairs has not been able to show any signiicant harmonization between TreatiesAgreement that had been ratiiedacceded with the respective national law. Therefore the authors recommend that that towards treaties that had been ratiied or acceded, the government should maximize the plan for integration and harmonization of such commitment into national legal framework. It would altogether well if such provision contains: Firstly, Harmonizing Provision which mandated that any provisions of international treaties are to be adjusted in a way that are consistent to the national laws speciically ratiied by Ratiication Laws, Secondly, Time range or time limit to conduct adjustments. Thirdly, Clause of Appointment of agencies responsible for adjustments. And lastly, a transitional provisions that provide legal certainty during the existence of dual laws. The aforementioned clauses should ideally also be contained in the Law on International Treaties, which should be given a its own section, particularly a section that are speciically meant to cover questions relating to harmonization and integration, The best solution other than this would be an actively accommodate future ratiication products with harmonization clause.

c. Creating Implementation Legislation

for International Treaties Not all international treaties are non­ self­executing treaty that requires a speciic implementation legislation to allow them to transform into an applicable legal product. Some treaties have the characteristics of self­ executing, meaning that the implementation of such treaty does not require implementation 23 Ratiication status see on Santiago Vilallpando, “Treaty Section”, http:legal.un.orgoladiv_treaty.aspx?section=treaty, accessed on 27 Desember 2013. 505 Merdekawati dan Sandi, Analysis on Indonesia’s Fullillment of Obligations Rising from International Treaties legislation and could be executed upon ratiication. Determination of whether an inter- national treaty is self­executing or non­self­ executing, is contained within the treaty itself, several international treaties may explicitly mandates the establishment of a national legislation may be identiied as a non­self­ executing thus calling for an implementation regulation to be provided by the state parties as a national framework which the treaty shall operates. 24 Likewise, if the clauses in the agreement does not speciically mandate the establishment of a national legislation, it can be said the agreement is self­executing which means it can be directly implemented or operationalized post a state’s ratiication accession. From the perspective of national legislation, it can be seen that other than the lack of mandates of implementation legislation as argued above in discussing Law No, 24 of 2000, other ratiication of other international treatiesagreement also tends to not include mandates to create implementation legislation. As exempliied in the Law Number 12 Year 2005 on the Ratiication of Covenant on Civil and Political Rights, or the Law Number 29 Year 1999 regarding Convention on the Elimination of All Forms of Racial Discrimination 1965, which both do not point to an implementation legislation, but rather only contain obligation for promulgation following ratiication. Therefore the authors recommend that : 1 To regulate mandatory imple­ men tation legislation in a natio- nal level for acceded ratiied international commitments, in order to ensure performance and participation not only from the government, but also any third party organization. 2 The requirement of maximum range of time, and maximal adjustment period, and methods to appoint institutions in charge in performing these obligations. Similar to the previous recommen- dation, this assertion clause should be regulated in Law on International Treaties to promote nationwide implementation legislation as a means of fulillment of international obligation. Additionally noting that Law No. 24 Year 2000 do not remotely discuss regarding implementation legislation. Then as a solution it would be preferable that an additional operative clause to be attached to products of ratiicationaccession either in the form Ratiication Law or Presidential Regulation. This accommodation is feasible because the product of ratiicationaccession has no limit for these additions as the authors have previously described.

d. Registration and Publication of